Question of the Day: Are You a Gun Dealer?

Life just got a little more complicated for those of us who sell the occasional firearm. The White House released a “fact sheet” on the president’s soon-to-be executively-ordered gun control moves last night. One of which features a crackdown on the virtually non-existent “gun show loophole” by more tightly defining who’s considered a “gun dealer.” As cbsnews.com notes . . .

(Attorney General) Lynch insisted Monday that the new guidance on the gun show loophole sets “clear, definitive standards” for anyone who wants to sell firearms. However, the new guidance does not include a specific number of guns that must be sold to qualify as a dealer, since existing law does not specify a number.

However, court rulings have set a precedent that says a person could sell as few as one or two guns and still be considered a dealer, depending on the circumstances. For instance, Lynch explained, if an individual sells a gun clearly for profit, or if they buy and sell a gun kept in its original packaging, they may be considered a dealer.

Only in the upper echelons of government does a nebulous, capricously-applied, non-specific definition constitute a “clear, definitive standard.” Don’t expect any real clarification, either, as that would tie the hands of the ATF in enforcement, and they prefer their regulations fungible and arbitrary.

Still, if you’ve got a heater you want to sell, for whatever reason, you’re going to have to dip a toe in those swirling waters and hope you fly under the radar. Are you a gun dealer?

and then again I keep thinking this is a nation of laws… Like I dont know, the US Code:

18 U.S. Code § 921 (a)(21)(C) defines “engaged in the business” as:

“a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms”

Gee nation’s top Attoney doesn’t know the existing law on what consitutes difference between hobby and for profit dealer – how about help her out and email the stature info to her? Nah, she already knows it, just another ploy to keep more guns out of circulation, scare the sheep into never selling or buying a gun cause you can’t ever sell it.

Glad you found this. Our local newspaper said pretty much the same thing — the soft criteria would be (at a gun show) is there a table, a credit card machine, multiple guns being sold, etc. This code citation is very clear, as opposed to the nonsense that was spouted at the new conference.

So what we have here is 2016’s version of the hemp tax stamp. (you need one,but can’t have one)
I suggest every gun owner apply for an ffl, let’s see how they handle 100 million plus applications,their going to need the 200 extra batf agents.

They are completely PUNKING EVERYONE. They are making completely innacurate statements. THEY DID NOT CHANGE THE CURRENT RULES. All that they’ve done is scaring people into thinking that they’re going to do something. Read the rules that they just released:

Under federal law, a person engaged in the business of dealing in firearms is a per-son who “devotes time, attention and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.”

Under federal law, conducting business “with the principal objective of livelihood and profit” means that “the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection.”

Consistent with this approach, federal law explicitly exempts persons “who make occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

So occasional private sales are perfectly legal. If you used to buy a table at gun shows to sell firearms, you probably should obtain an FFL. If you want to sell your Glock 17 to Joe Schmoe, it is still legal to do so. If they think you’re a person “in the business”, they still have to build a court case and devote man hours to it in order to gain a conviction. There aren’t enough enforcers or hours in a day to go after private sales, and they wouldn’t be illegal anyways. They are using Edward Bernays propaganda to make you think that something has changed. Do NOT listen to these idiots.

“While a collector or hobbyist may use the internet and other communication technology to sell a firearm without a license (provided that they comply with all other federal and state laws and regulations), those engaged in the business of dealing in firearms who utilize the internet or other technologies must obtain a license, just as a traditional dealer whose business is run out of a traditional brick and mortar store.”

If you’re just selling one of your through Armslist, you’re fine. This will not be the demise of armslist.

Armslist isn’t a forum for selling. It is a classified ad no different than a newspaper classified ad. It is simply a listing of items available for sale grouped by area or type. There is no where on that site for you to enter credit card information to physically purchase a firearm through their website.

One of the vagaries of the EO remarks is that there was no definition of “use” applied to the internet. In other areas “use” has been as thin as responding to a question from a possible buyer before or after the actual transaction. I’m pretty sure posting on Armslist would be called “use,” but having seen the ATF Guidelines posted earlier, that’s probably just one of several factors that would be applied.

Thank you for copying the Fox News citation. The ATF document and especially their examples are very clear, even if there is no bright line. It really is the “if it quacks like a duck” test. Looks like most of us are not going to be involved in this. I suspect that B.O. is mostly after people who “manufacture” AR’s in their garage out of random parts, and sell them out of the trunks of their cars, even if there is no intent to sell to gangstas, jihadis, etc. I personally have no problem with them doing it; it really is no different from the people at craft fairs who make belts and wood toys. I understand the confusion and danger if you are a guy who occasionally builds and sells to friends. To me that is selling out of a personal collection. Just don’t be stupid about it like some of the Armslist ads with unmatched parts listed and the giveaway line “fired 3 times for function test only.” If you build in volume, it is hard to argue that you are not “in the business”.

“If you used to buy a table at gun shows to sell firearms, you probably should obtain an FFL.”

Many people who “buy a table” or two at a gun show, do so to buy and sell for their own private collection of guns and other gun/military related items, don’t have an FFL. And as I understand the current ATF rules they couldn’t get one because they are not considered as being a business.

A fine Catch 22 could be developing. You have to have an FFL to sell a few guns at a gun show but can’t get an FFL because you don’t qualify as a business under a different section of the regulations.

That was the first thing I thought of… so you want everyone who sells guns, including internet and personal sales, to have an FFL… but, when I looked into getting an FFL just because I was tired of paying transfer fees I found I can’t get an FFL because I don’t have a “brick and mortar store front” for the BATFE to inspect. For a moment I was hopeful they were going to relax this rule and take us back to the days of anyone willing to register could be an FFL. I guess not… too bad I’d gladly register so guns could be shipped straight to me. I wouldn’t mind having access to the background check system either.

Scott has been collecting high-end firearms for years. In the six months before his
son is about to enter college, Scott sells most of his collection in a series of transactions
at gun shows, on the Internet, and to family and friends to provide funds to
pay his son’s college expenses. Scott does not have to be licensed, because he is
liquidating part of a personal collection.

An FFL running a courtesy (with fee for the trouble) NICS check isn’t the seller of the firearm. AFAIK, they (generally) don’t add it to their books then record it as a business sale. Those who are FFLs please correct this if it’s wrong.

So selling a gat may mean either consigning it to an FFL store or randomly running into sum dude that wants to buy it, without any ‘advertising’ like GB, Armslist, FB, your local range’s Buy/Sell board, etc.

To do the NICS check, the firearm would be entered into the “Acquisitions and Dispositions” book, a 4473 would be filled out, and the FBI NICS would be contacted to obtain a “proceed”. The firearm would then be transfered to the new owner, with the appropriate annotations in the A&D book and on the 4473. “De facto registration” is basically correct. This is one of the measures Obama reemphasized awhile back. So, the firearm *is* added to those books.

However, it would not (normally) be added to the financial books as a purchase (cost-of-goods-sold) and sale (with sales tax, if applicable). The only income would be the transfer fee: the FFL would not become the “owner” of the firearm normally.

The gotcha: once it’s entered into the A&D book, it can not be returned to the original owner (say, if the purchaser was “denied”) without the original owner passing a NICS background check. Loverly, eh?

But regardless of whose name(s) go in the bound book, the names do go through the NICS system if I understand correctly. Yes, it’s illegal for them to keep that info. And they have repeatedly demonstrated that they do it anyway. If you have ever passed a BG check purchasing a gun, you are a registered gun owner with the Feds. I’m certainly on that list.

FFLs in Colorado have been doing this since CO law changed in 2013. It’s a personal transfer. It never hits the financials (except for the transfer fee), just the A&D book. Problem is that a lot of CO FFLs are refusing to do personal transfers for fear of transferring a stolen firearm. The BGC is done on the buyer, not the seller, and no way to check 100% if the gun is stolen or used in a crime. For FFLs who do personal transfers the new law has created a new revenue stream. In a lot of cases I make more on the transfer than selling from inventory. My total fee (including BGC) is $40. Some dealers charge way more.

The proposed “rules” (unconstitutional orders) are not about whether the gun itself was transferred via FFL, it’s that if you are regularly selling guns then *you* need an FFL. IE, regularly selling guns under the conditions Osama describes is a no-no if you are not an FFL. Doing the transfers via a FFL doesn’t negate that you would need an FFL yourself if you sell guns as described.

On topic, listening to talk radio here in the people’s republik, the callers don’t really seem to understand what this all means. Here we already have UBC’s and essentially no NFA items so no one really understands why a person would use a trust to by firearms. There’s a distinct lack of knowledge here. And it’s sickening.

There are several categories of NFA items; machine guns, silencers, any other weapons (AOW), etc. I was just going by total counts across all types. In specific categories, CA is actually first, in others much lower.

Here’s the ATF source data from March 2014, most recent I could find. Scroll down to Exhibit 8.

Well I don’t keep a gun in its original packaging I usually break down the box and either burn it or throw it away after I get a case for it or put it in the safe. As far as selling to make a profit if I buy a gun it’s because I’m going to want to keep it for quite a while so I can’t say I intend to make a profit off of it.

All politicians lie and obama is the pinnacle of that, but there is at least one person giving us a glimmer of hope out there. Trump has stated he would roll back all obamas EO’s on the second amendment immediately. Now if he will do it or not is debatable but at least there is someone out there sticking up for us. I liked Ted Cruz but not a word from him, in fact he instead tells the people in Oregon they don’t have the right to do what they are doing. He lost my support.

It’s the same nebulous, meaningless, open ended definition the ATF has always had. This changes nothing. I highly doubt they have the resources to start tracking randomguy14 on Armslist who’s trying to sell an old shotgun once a year.

They don’t have to be doing anything more as long as they can convince people that they might drop the hammer on you for selling any number of guns. Keeping things vague while going public with statements that are designed to strike fear, confusion, and legal murkiness is a strategy. One the IRS and EPA also follow.

Unless/until “they” want to. Same as the current PR BS that ICE is preparing to deport a few Central American single mothers and their offspring. This after the moslem eunich and his coven have allow millions to invade over the last few years. Believe NOTHING these fools say.

Ok so i may be ignorant of how this works but if I buy a firearm from Budsgun shop will they have to do a background check before they send it to my local FFL to perform another background check?? I have only ever purchased muzzleloader type guns in the past from Buds and they get delivered to my front door.

On line gun shops don’t do NICs ever. They ship to your designated FFL, When gun arrives at the FFL location an employee will call to let you know item has arrived for you to come pick it up, the NICs is done at time. All FFLs I’ve dealt with will let you open case to make sure it’s item you ordered and no damage from shipping company

I suppose that’s the government’s problem, especially since they decided to stick their nose into a lawful transaction between private individuals, involving a right constitutionally protected against government infringement.

Awwww. Bless your little heart. You still think the criminal justice system is “innocent until proven guilty.” That is such a cute notion.
/sarc

I agree with you in principle but I also know that “you can beat the rap but you can’t beat the ride.” In practice, the Feds will hammer Uncle George for selling his collection because he is low hanging fruit without the resources to mount an effective defense that can be easily scared into a plea deal. Predators all act the same regardless of whether they walk on 2 legs or 4 (or more or less).

Let’s say I’m the guy I saw at Academy last night, who can’t stop gushing over the Curve. It would be unfair to punish him for taking it to the range for the first time, realizing it’s a piece of pa’tak, and selling to some other sucker who buys it for more than list because Taurus is the current fad.

I also have issues with how they would look at me. The shotgun box is long gone, but everything that came with the Glock and the 10/22 (takedown) is in the house. Heck – the “case” for the 22 was the transport bag. Do my pack rat tendencies mean that I’ll be considered a dealer?

This is unfortunate for me especially, as I am planning a year long road trip and want to sell most of my arsenal, including an AR10, AR300bo pistol, 12gauge, Rem597, 2xG&G522’s, Sig 2022, Walther PPS, S&W442 and Charter Arms 44sp. I am trying to decide what is the best weapon to load in the RV, as I will be avoiding the East Coast( grew up there) but I may go into California. What gun would you guys carry on an RV road trip?

Does selling a car make you a car dealer? Does having a garage sale make you an “antiques dealer”? Does selling a dozen eggs make you a “poultry products dealer”? Does selling your house for a profit (especially if you list it on Craigslist) make you a “real estate dealer”?

Sadly, and it has been well documented over at Reason.com, in some states selling eggs, milk or even tomatoes that have not been inspected can get you fined or throw into jail for not being licensed to do so.

That one actually depends on your state. I am designing my house that I am going to build with a rain water collection system and in my research, I found that Texas actually provides property tax breaks for doing so. Other states however, (mostly blue) would crucify you for doing this. (don’t know exactly which ones.

David enjoys hunting and has a large variety of hunting rifles. He likes to have the
newest models with the most current features. To pay for his new rifles, a few times a
year David sells his older weapons to fellow hunters for a profit. David does not need
to be licensed because he is engaging in occasional sales for enhancement of his
personal collection.

Does selling a car make you a car dealer?
Maybe.
In my state, selling more than 5 vehicles/year makes you a dealer, subject to licensing. Or purchasing just one with the intent of re-selling it. I much prefer a clear line over “try it and find out”

I keep the original packaging for all of my gun purchases. It increases the resale value. And after all, aren’t all purchases of durable goods an investment? I certainly don’t buy things to destroy and throw away. I use them. I take care of them. And if I chose to sell them, I expect a reasonable return on my investment. Does this make be a dealer?

As long as you support the leftist agenda and donate to the Democratic Party, no you are not a dealer. If you are a conservative or deviate from The Current Truth as dictated by the leftist authoritarian elite, then you are a dealer and should be put in prison.

I may be giving the ATF too much credit, but I read “may” as “might” instead of “shall.”

I think the wording of original packaging is very unclear. There’s a big difference between the original plastic box your Glock comes in, and selling an unused gun that’s still in a plastic sleeve with a blank warrabty reg card and all the NRA flyers a day after you bought it. In concert with other factors, it could be construed as intent, but alone it would be meaningless.

I saw a STEAL OF A DEAL on Mossberg 500s once. Brand new, black. Awesome. Guy was going out of business. So I bought 4! guy gave me a deal for all 4 at $225 each, when they were $425 on the tag. Figuring I could sell one or two, or trade and basically get myself a “free” shotgun and some cash.

Sold one to my buddy for $350 Uh oh… Profit.
Traded one for a used Glock to another guy.
Eventually sold the last one for $350 on armslist when I was clearing out the gun room. (again,,,, profit).

Now. I made an actual $250 or so, but with the one I kept its just about a wash, and a little value in the Glock trade. Guess I am a dealer right?

Way I see it, Obama/Lynch created two problems with this, because if you’re a firearms dealer, you’re required to have an FFL, no? Lynch said that a single sale in the original packaging conferred dealer status, so if you sell a gun in the original packaging, it’s a dealer sale, and without an FFL, which the ambitious arse-licking AUSA will stretch up to terrorism. //sarc
Or maybe not //sarc. I’d like to see the facts on a prosecution where a single sale was deemed “in the business” based on original packaging and nothing else.
The next shoe to drop will be an ATF full court press to a maximum sentence for some poor unlucky git to make us collectively suck in our breath and shake at the knees.

That’s exactly what I was thinking. Maybe I should burn some gun boxes so I’m not accused of intent to be a dealer. Just to be safe, I’ll sell everything at a loss, too. Why should I pursue happiness when the government wants it more?

I’ve been buying and selling since before I was “old enough” to legaly do so. So am I “grandfathered” in? I was lucky enough to be raised in Alabama where guns are normaly seen and used for hunting. It’s a hobby of sorts for me. Buy something, play with it for awhile and trade or sell it and repeat. 1/3 of my arsenal are actual hunting arms the other 1/3 are CCW. the other 1/3 are SHTF or range toys..

When does this policy take affect? I’m not clear on how this new government works. Is it in force as soon as He Who Shall Be Obeyed verbalizes it, or do they need some paperwork to strip people of freedoms??? Do tears make it extra special??? Is he really trying to close the Constitutional Loop Hole to own guns?

I often keep original boxes, etc. for years, and (most) often get a FA shipped to my FFL cheaper than I can get it locally (sometimes by quite a bit). Sometimes I decide after a bit that I don’t want it anymore and sell it to fund more ballistic joy. Sometimes at more than I bought it for. Sometimes this is more than 2 in a year.

So, going to jail now, or is the lack of intent enough? This is seriously stupid. if I make a ‘profit’ it is because local shops charge an arm and a leg in markup and I can still sell my ‘used’ FA for more than I bought it for, now I’m a criminal because I kept the original box? This is worse than ‘you shouldered it’ on arm braces.

So you go to the annual (elk, deer, turkey etc) banquet and you win a shiny new rifle, special edition, in the box. But, you would rather hunt with your old trusty gun and people are rushing up to you to buy that new gun all evening at the banquet. Someone you know offers you the right price, but you seriously can’t sell your own property?? Thank you Dictator Hussein…

So then basically Obama has instituted universal background checks, just without a way to enforce it, but where it now becomes a crapshoot in that if you want to sell a gun, the person you sell it to could be an undercover cop seeking to bust you…?

I hope this backfires on the progressives. Every time they try to limit access to guns we have new people purchase there first.

The attempt to expand the definition of Gun Dealer to include person to person transactions has a couple of big problems. Yes you can argue 2nd amendment, that’s obvious.

I am more interested in seeing this challenged on the basis of it being an intrastate transaction. As such the Federal government should have NO regulatory or statutory authority. Infringement on intrastate commerce has been a issues for years. We might have just been handed an issue with enough support to seriously push back and force the FEDs into its defined role of interstate commerce regulation only.

Apparently I am. Who knew? I’ll consider getting an FFL if and only if they don’t require business premises still, which they do, as I only sell at gun shows. I can’t check a box on the application for an 01FFL that I won’t be operating out of a storefront, so they obviously don’t want me to have a license.

This bookends nicely with Brady – get rid of Kitchen Table FFLs by requiring brick and mortar and then define everyone without an FFL as a dealer anyways. They are trying to have their cake and eat it too, it seems.

This is the reverse to what some people do to help pay for their hobbies. If you can operate your hobby like a business, the IRS will let you deduct your “business” expenses from your ordinary income when you file your income tax return. The way to show that you are in business is to do things that a real business would. One example is advertising. Suppose, at matches, you put up a sign that reads “Joe’s Guns – Buy, Sell, Trade” and hand out business cards. All your costs associated with the match are tax deductible. If you occasionally make a contact that results in a purchase or a sale, all the better. Another way is to charge sales tax and forward the tax to the state and/or city. One firm rule is that you must show at least a small profit in two out of five years. You can lose your ass the other three years. Your “business” need not be profitable over the long term. Since it involves buying and selling firearms, you would need an FFL. That would actually help you with the IRS.

I read about an old guy who wandered around a gun show with a couple of old military rifles and a “For Sale” sign around his neck. I can’t believe he would be considered a dealer unless he did this repeatedly with different rifles. On the other hand, a member of my gun club attends shows regularly and both buys and sells when it’s to his advantage. I would consider him to be a dealer and, I believe, he does have an FFL.

I suspect there will be a legal challenge of the current executive orders regarding private transfers. This sounds like applying the statute in a vague and arbitrary way. Proving that to a court though with luck of the draw judges presiding could be hard though. Worth filing the brief though…

Okay, I get it. You might be a gun dealer if: You sell a gun. You sell a box. You sell a gun in a box. You sell a box of guns. You have business cards that you carry in a box. You’re against box control.

Cmon guys it’s no different than telling us we can’t place a Brace against our shoulder.

They will only enforce where an investigation leads them with the ability to place charges. Hiring a few more agents means? They have it hard enough to keep up with bad guys. How to sort out who is selling off their collection and who is selling guns as a business is going to be hard with a snapshot look at a gun show table. How do you tell who is who?

A prosecutor only has so many people he can bring to court – they prioritize their workload and charge those who need to be kept out of society. One who would continuously charge gun hobbyists for selling without a license would be accused of letting murderers and rapists go free. They won’t do that – reelections are tough when they look soft on hard crime.

Who has been prosecuted for holding a brace to their shoulder?

This is not about “you’re a dealer, get an FFL,” it’s about all the EO conspiracy theorists now being shot out of the saddle – there is NO door to door confiscation, there is NO mandatory turn-in, there is NO buyback, there is NO AWB ban, there is NO Federal help for CA or NY to register “assault rifle owners” – most of who never did.

Nope, what we have is a carefully orchestrated, tearful admission he can’t do squat.

Precisely. As bad as it seems just reading the EO’s, it’s much ado about nothing, the result of which will be even more gun sales across the nation consisting of many more first time gun owners. Consider the ongoing defiance in New York and Connecticut and how results of the Oregon background check law.

The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

OK-I am a dealer-just not a GUN dealer. Antiques and such. This is as real as Obamas’ tears. Cover your tracks-especially on the “profit”. I bought a painting for $15-sold it for $32000. I see this backfiring on Bury Obama big-time. Have fun!

They can’t possibly monitor every single gun owner who sells a gun to his neighbor/best friend/brother-in-law. Consider the NY SAFE Act and how ineffective it turned out to be. Hopefully, these EO’s will simply anger the firearm owning population that much more into being ever more defiant, rendering these “orders” irrelevant and unworkable. Think of the resources it would actually take to track down every single gun owner. Simply overwhelm the system, so to speak, by being more active buying/selling guns and don’t worry about it. Most of these EO’s just restate existing law anyway, thus amounting to nothing. As another commenter just stated: Carry on.

I like to build ARs, shoot them a while, and sell them to finance the next build. Wash, rinse, repeat. Doubtless that will make me an arch criminal until someone gets into the white house and restores civil government.

This will be a test case for the courts. I wonder if the ATF giving guns to the Mexican drug cartels makes them a international firearms dealer?
Just like I-594 statute that was passed in Washington state, it really means nothing. Local L.E. will not enforce it, they see it for what it is, an attempted end run around the 2nd amendment… Maybe we could have a sanctuary city where we don’t enforce gun laws. Kind of like San Francisco where they don’t enforce immigration laws.

By the way, I bought a new washer and dryer and sold my old set, I don’t think that makes me an appliance retailer, or does it. 🙂